By Christine Chung

Christine Chung is a
Senior Advisor to the Committee for Human Rights in North Korea and the former
Political Advisor to the Commission of Inquiry on Human Rights in the
Democratic People's Republic of Korea. As a human rights officer for the Office
of the United Nations High Commissioner for Human Rights, she managed the
Office's technical cooperation program with China, supported the Special
Rapporteur on the situation of human rights in Myanmar, and served desk functions
for Northeast and Southeast Asia. Before joining the UN, Ms. Chung established
and headed the China field office for the National Democratic Institute for
International Affairs.

Introduction

In an interactive dialogue on
November 17 and 18, 2015 at the Palais des Nations in Geneva, members of the
Committee against Torture (CAT), the treaty body charged with overseeing
implementation of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (the “Torture Convention”), reviewed China’s
fifth periodic report.[1]
The members who noted that the government had not responded, or had responded
only partially, to specific questions when they had been posed earlier in the
List of Issues raised many core human rights concerns.[2]
Among these issues was China’s forcible return of fleeing North Koreans. The
Chinese government sent a 40-person delegation from 21 departments (an exceptionally
large delegation as noted by one of two Committee Rapporteurs) to represent the
country, to respond to members’ questions, and to present its own narrative of
China’s adherence to these legally binding obligations it voluntarily and
willfully signed onto so many years ago.

Included in China’s obligations as
a State party to the Torture Convention are stipulations that apply to China’s
treatment of North Korean refugees and asylum-seekers. Article 3 of the Torture
Convention states: “1) No State Party shall expel, return
("refouler") or extradite a person to another State where there are
substantial grounds for believing that he would be in danger of being subjected
to torture;” and “2) For the purpose of determining whether there are such
grounds, the competent authorities shall take into account all relevant considerations
including, where applicable, the existence in the State concerned of a
consistent pattern of gross, flagrant or mass violations of human rights.”[3]

In February 2014, the UN Commission
of Inquiry on Human Rights in the Democratic People’s Republic of Korea (DPRK) found
that there was a pattern of gross human rights violations that were both
systematic and widespread and reported in detail the high likelihood that those
North Koreans captured in China would be subject to torture or cruel and
degrading treatment upon their repatriation.[4] The
Commission of Inquiry also highlighted China’s complicity in human rights
violations committed against those North Koreans who were forcibly returned.

CAT questions China on North
Koreans

The review of the People’s
Republic of China (PRC), the Hong Kong Special Administrative Region, and the
Macao Special Administrative Region took place over two days in two sessions
scheduled for three hours each. China’s head of delegation, Ambassador Wu
Hailong, Permanent Representative of the PRC to the United Nations Office at
Geneva and Other International Organizations in Switzerland, gave an opening
statement highlighting “major new developments” since the last report. He focused
on various legislative accomplishments, such as amendments to the criminal and administrative
procedure laws and joint promulgation of provisions legally safeguarding the
right of lawyers to practice law by the Supreme People’s Court, the Supreme
People’s Procuratorate, as well as the Ministries of Public Security, State
Security, and Justice. The irony of such claims in the context of an
unprecedented crackdown on human rights defenders, particularly defense lawyers,
was, as usual, lost on Chinese officials. The Ambassador did not mention the refoulement
of North Koreans in his opening statement.

Nevertheless, one of the two
rapporteurs given 25 minutes each to pose questions immediately after the
opening statement, George Tugushi, asked for the number of North Koreans who
were forcibly returned to North Korea, noting that many people from North Korea
have a well-founded fear of persecution or were refugees sur place, including pregnant women who could be subject
to forced abortion or infanticide. He asked whether the bilateral agreement
between China and the DPRK (mentioned in China’s response to the List of Issues,
see below) took precedence over the Torture Convention. Referring to measures
the Commission of Inquiry reported China had taken to apprehend North Koreans,
including punishing people who aided North Koreans or offering monetary rewards
to those who assisted in their capture, Mr. Tugushi inquired whether China
regards fleeing North Koreans as economic migrants.

After the two rapporteurs had
posed their questions, Committee Chairperson Claudio Grossman allowed other CAT
members eight minutes each to make their queries. Felice Gaer—Vice-Chair of the
CAT and Director of the Jacob Blaustein Institute for the Advancement of Human
Rights—followed up on Mr. Tugushi’s questions by noting that China had claimed
that illegal border crossers caused harm and did not fall under the auspices of
Article 3 of the Convention. Ms. Gaer pointed out that fleeing North Koreans
were not subject to a refugee status determination process. Further, she asked the
State Party to clarify this issue. Since 2008, more than a hundred testimonies
of forcible repatriation have been received by UN entities, but China continues
to return North Koreans despite mounting evidence of their being subjected to
torture and ill-treatment. Ms. Gaer asked how many of these refugees have been subject
to refoulement per year and how many are women. She further questioned why the UN
High Commissioner for Refugees (UNHCR) is not allowed at the border, despite
China’s agreement with the agency. Furthermore, she asked why there is no
monitoring at the border. As the 2013 Exit and Entry Law allows people to
remain in China during the refugee status determination process, how many North
Koreans have been allowed to stay? What is the total figure, and what is their
status? She asked the delegation members if they believed that North Korea’s
criminalization of the right to leave the country is in line with international
human rights standards? If not, she asked, then why does China collude with
them? If so, then will China agree to international monitoring of their return?

China’s responses to the CAT
on North Koreans

While most of the first day’s
session was taken up by CAT members posing questions, Wednesday’s session was broken
down to 90 minutes for the States parties’ responses to the previous day, then
45 minutes for the CAT members to ask follow-up questions, and finally 40
minutes for the State parties to reply. The State parties were also given two
days to provide further written responses to questions.

Ambassador Wu started by
emphasizing that his delegation was taking a responsible and open attitude in
its response to the CAT’s questions. This may or may not have been a deliberate
nod to China’s contrasting attitude in its earlier review (see below). He
assessed that the problem with providing insufficient data would need to be
addressed in order to better showcase China’s efforts towards ending torture
and ill-treatment. Various members of China’s delegation then answered clusters
of questions.

On the issue of refoulement of
North Koreans, Xu Hong, Director-General of the Department of Treaty and Law,
Ministry of Foreign Affairs, responded that China had already replied on the
issue of illegal immigrants and that they were handled according to relevant
international and domestic laws and humanitarian principles. Some of the “illegal
immigrants” were coming to China for economic reasons with no evidence that
Article 3 of the Torture Convention applied to them. He noted that some CAT
members had cited the Commission of Inquiry’s findings, but many UN Member
States, including China, had expressed reservations about the establishment of
the Commission. He recommended that the CAT members read an October 13, 2015 article
in The Guardian entitled, “Why do
North Korean defector testimonies so often fall apart?”[5]
While acknowledging that State parties should be committed to non-refoulement, he
said that the principle should not be abused by “criminals” who are trying to
escape punishment. Another delegate responded on the point about the Exit and
Entry Law that the refusal of entry to some persons was under the
responsibility of the border inspection guards and not under the competence of the
CAT.

During the posing of additional
questions by the CAT members, Mr. Tugushi asked Macao about the small number of
refugees processed there (since 2005, only nine refugee cases involving 14
people with only four people receiving asylum), and in particular whether any
applicants were from North Korea.The translation of the response from Chu Lam Lam, Director of the Law
Reform and International Law Bureau of the Macao Special Administrative Region,
was unfortunately a bit garbled but seemed to imply that Macao cooperates with the
UNHCR to determine if asylum applicants face any risk of torture.

Recent background on the issue
of North Koreans in China and the CAT

The only reference that Chinese
authorities made to North Korea in their current state report is in the list of
19 countries with which China has a treaty of mutual legal assistance in civil
and criminal matters.[6]However, refoulement of North Koreans
was subsequently raised by the CAT in the List of Issues it transmitted to
China in June 2015:

According to
information before the Committee, approximately 29 persons, including a
one-year-old baby, were allegedly forcibly returned to the Democratic People’s
Republic of Korea in August 2014. Please confirm this information and inform
the Committee about their fate upon return. Are there post-return monitoring
arrangements in place to ensure that those returned to the Democratic People’s
Republic of Korea are protected from the danger of being subjected to torture?
In this regard, please comment on the findings of the commission of inquiry on
human rights in the Democratic People’s Republic of Korea, according to which
illegal immigrants in China, including victims of trafficking, are forcibly
repatriated, and then subjected to persecution, torture, prolonged arbitrary
detention and, in some cases, sexual violence or forced abortions at ‘gathering
centres’, detention centres or prison camps in the Democratic People’s Republic
of Korea.[7]

China’s response to the List of Issues
was submitted to the CAT in Chinese on October 1, 2015. (About one week before
the review, the government provided an unofficial translation. In the meantime,
the nongovernmental organization Human Rights in China had provided its own
translation; the latter is used below. [8]) On the North Korea-related question, the
Chinese government responded:

In July 2014,
China’s public security organs, on the basis of notifications from the
Democratic People’s Republic of Korea, investigated and captured 13 individuals
from the Democratic People’s Republic of Korea who have unlawfully entered
Chinese territory. Upon examination, the Chinese side handed the aforementioned
persons over to the Democratic People’s Republic of Korea, on the basis of a
bilateral agreement between the two countries. Since the 1990s, influenced by
factors such as the slow development of domestic economy and food shortages in
the Democratic People’s Republic of Korea, some citizens have unlawfully
entered China’s territory, causing harm to law and order in regional
communities along China’s borders. These illegal border crossers do not meet
the refugee requirements set out in the UN Convention and Protocol Relating to
the Status of Refugees, and there is no conclusive evidence that they fall
within the circumstances set forth in Art. 3 of the Convention. The exit and
entry departments of public security organs have always carefully and properly
handled [cases] of illegal immigrants from the Democratic People’s Republic of
Korea, especially women, children, and unaccompanied minors, in accordance with
international law, domestic law, and humanitarian principles, protecting their
legitimate rights and interests to the maximum extent.[9]

China has long argued that North
Koreans in its territory are not refugees but economic migrants, and are
therefore not entitled to protection under international human rights law. In
fact, some North Koreans traveling to China may have started as economic
migrants, or in other words, they were not fleeing North Korea “owing to a
well-founded fear of persecution for race, religion, nationality, membership of
a particular social group, or political opinion.” However, given North Korea’s
restrictions on leaving the country without permission, these persons
subsequently become refugees sur
place; a refugee sur place is
person who was not a refugee when he/she left his/her country, but who becomes
a refugee at a later date, in this case due to a well-founded fear of
persecution upon repatriation to North Korea.Chinese
authorities indicated to the Commission of Inquiry that exceptions to this
categorical refusal to consider North Koreans as persons of concern requiring
protection were sometimes made on humanitarian grounds.

China’s response to the List of Issues
further details the general right to receive asylum and the application of the
Exit and Entry Administration Law, including procedures for appealing decisions
by the courts. The Chinese government explains, “With regard to the number of
recorded requests for asylum, as of August 31, 2015, the number of refugees in
China is 173 people, with 588 asylum-seekers.”[10] Reference is
also made to the UNHCR, with the elaboration that refugees determined by
UNHCR’s Regional Office in Beijing who have proof of their status issued by the
Regional Office are permitted to stay in China for the effective period of time
specified in these documents. Unsurprisingly, no mention is made of the de
facto restriction on UNHCR from going to the northeastern areas of China where
North Korean asylum-seekers are concentrated.

The CAT previously considered
China’s compliance with the terms of the Torture Convention in December 2008. That
review was a more heated affair. It would be an understatement to say that the Chinese
authorities exhibited an extreme sensitivity to questions about the whereabouts
of the Panchen Lama or the treatment of Falun Gong practitioners in
detention.

During that session, Felice Gaer,
one of two CAT members who were the rapporteurs for China (the Committee
appoints two of its members to act as country rapporteurs for each report),
addressed the status of North Koreans in China:

Turning to
article 3 of the Convention, she noted that the State party indicated in its
written replies that no refugee or asylum seeker had ever claimed that he or
she risked being tortured on expulsion to another neighbouring country.
Additional information concerning the procedure in place for determining
refugee status, as well as an explanation of why the Chinese Government refused
to allow UNHCR access to the border with North Korea, where the estimated
number of North Korea refugees varied between 30,000 and 300,000, would be
welcome. In that connection it would also be useful to know on what grounds the
State party referred to all the North Korean citizens in the Chinese border
area as “clandestine immigrants”- a stigmatizing description – and claimed that
they did not meet the criteria for obtaining refugee status, as they were all
economic migrants. Persons who left the People’s Democratic Republic of Korea
were exposed to criminal prosecution if they returned to their country of
origin, and thus became “real” refugees. Did the State party recognize the
concept of “refugee sur place”?[11]

In its concluding observations on
China’s review, CAT did not relent on the issue of North Koreans in China and
the problem of refoulement:

The Committee is
greatly concerned by allegations that many individuals have been forcibly
returned to the Democratic People’s Republic of Korea, without any examination
of the merits of each individual case, and subsequently been subjected to
torture or cruel, inhuman or degrading treatment or punishment by the authorities. The Committee notes with
concern that these individuals are referred to by the State party as “illegal
immigrants” or “snakeheads” and that such labels presume that these individuals
are not deserving of any protection. Similarly, persons extradited to and from neighbouring
States do not benefit from legal safeguards against return despite the risk of
torture. The Committee is further concerned by the failure of the State party
to clarify how it includes in its national laws or practice the prohibition on
returning a person to a country where he or she faces a substantial risk of
torture, and hence how the State party ensures that its obligations under
article 3 of the Convention are fulfilled (art. 3).[12]

CAT made the following
recommendation:

Under no
circumstances should the State party expel, return or extradite a person to a
State where there are substantial grounds for believing that the person would
be in danger of being subjected to torture.When determining the applicability of its obligations under
article 3 of the Convention, the State party should establish an adequate
screening process for status determination in order to determine whether
persons subject to return may face a substantial risk of torture, particularly
in view of the fact that it is reportedly a criminal offence to depart
unofficially from the Democratic People’s Republic of Korea, and should provide
the Office of the United Nations High Commissioner for Refugees with access to
the border region and persons of concern. In the light of the large numbers of
citizens of the above State who have crossed into China, the State party needs
to be more active in ensuring that the obligations of article 3 are fully met.
The State party should also ensure that adequate judicial mechanisms for the
review of decisions are in place and sufficient legal defence available for
each person subject to extradition, and ensure effective post-return monitoring
arrangements. The State party should provide data on the number of persons
expelled or returned to neighbouring States. The State party should pursue its
efforts to adopt appropriate legislation to fully incorporate into domestic law
its obligation under article 3 of the Convention, thereby preventing any
persons from being expelled, returned or extradited to another State where
there are substantial grounds for believing that he or she would be in danger
of being subject to torture.

The response by China to its
review by CAT was a rare formal attack on the rapporteurs alleging bias and
politicizing of consideration of the country’s report.[13]

Despite China’s attempts to
characterize its CAT review as a distortion by biased rapporteurs, it is
important to recall that concerns about the treatment of North Korean refugees
and asylum-seekers in China and their refoulement have been raised not only by the
CAT but by other treaty bodies and special procedures, such as the Committee on
the Elimination of All Forms of Racial Discrimination and the Committee on the
Elimination of Discrimination against Women, which expressed “particular
concern at the situation of North Korean women, whose status remains precarious
and who are particularly vulnerable to being or becoming victims of abuse,
trafficking, forced marriage and virtual slavery.”[14] In October
2013, the Committee on the Rights of the Child recommended that China stop
arresting and repatriating North Korean citizens and enable children of North
Korean mothers to claim their fundamental rights. In June 2014, the Working
Group on the Issue of Discrimination against Women in Law and in Practice
recommended that China protect and humanely treat all North Korean women in
China, respect the principle of non-refoulement, and provide access for UNHCR
to the provinces bordering North Korea. The issue of refoulement of North
Koreans was also raised in both of China’s Universal Periodic Reviews.

Conclusion

Given these long-running and
consistent recommendations to China to revisit and remedy its approach to North
Korean asylum-seekers, one can hope that a day will come when China is ready to
live up to its international obligations by providing North Koreans protection.
CAT members raised difficult issues spanning a broad range: ensuring judicial
independence; guaranteeing lawyers the full freedom to practice law; providing
redress after investigating and disclosing information on events in Tiananmen
in 1989; establishing fully independent monitoring mechanisms for places of
detention; and detailing information on endangering state security, including
applicable offenses and safeguards for those accused of these crimes. Given the
extent of China’s outstanding issues before the CAT, it would seem that
providing protection to North Korean refugees would be one of the easier ways
for Beijing to demonstrate to CAT its commitment to addressing torture and ill-treatment.

The response by the Chinese
delegation to the various questions on forcible repatriation of North Koreans
was deeply unsatisfying and mostly evasive. The recommendation to read The Guardian article is an odd one,
perhaps more desperate than well thought through. The article essentially
posits that some North Korean refugees exaggerate their stories for various
reasons and that the international community should not rely too heavily on
their testimony, but that the bigger picture of the human rights situation in
North Korea remains.

Two weeks ago, the CAT directly asked why the UNHCR has not been
provided access to the border areas where North Korean asylum-seekers are
likely to be found. In the concluding observations that should be released on
December 9, 2015, it would be a solid first step if the Committee recommends
that the government facilitate the UNHCR’s presence in the relevant parts of
Liaoning and Jilin provinces and permit the UNHCR to operate there without
restrictions or limitations on visas for key personnel and with security
guarantees for staff as well as for vulnerable persons seeking protection.[15]
If those persons applying for refugee status are not really eligible under
international refugee and human rights law, then UNHCR could affirm the
position of the Chinese government. If they are eligible, UNHCR could provide
China with the technical assistance and support it needs to provide them
protection. Either way, this would be an enormous boost to China’s credibility
on efforts to address torture and its human rights commitments more broadly. It
is difficult to imagine a reasonable argument explaining why the UNHCR has been
denied access to the Yanbian Autonomous Korean Prefecture or other areas
populated by ethnic Koreans.[16] In reality, none has ever been given. In the follow-up mechanism of the CAT, several
recommendations are selected for particular attention over the coming year.[17]
Perhaps CAT members should consider making the plight of North Koreans in China
the subject of one of those recommendations.

[1] In 1988, the
People’s Republic of China ratified the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, thereby committing itself
to preventing torture within its territorial jurisdiction through all necessary
measures. In June 2013, the Chinese government submitted China’s fifth periodic
report, which had been due in November 2012.

[2] As part of
the review procedure, the Committee against Torture at the session that
precedes the review draws up a list of issues “intended for States parties to clarify and update certain
questions and issues as well as to focus, without restricting, the dialogue
with the States on matters of particular interest for the Committee.” See CAT,
“List of issues in relation to the fifth periodic report of China*,” 15 June
2015, CAT/C/CHN/Q/5/Add.1.

[3] UN General
Assembly, Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, 10
December 1984, United Nations, Treaty Series, vol. 1465, p. 85, available at
http://www.refworld.org/docid/3ae6b3a94.html [accessed December 4, 2015].

[4] UN
Commission of Inquiry on Human Rights in the DRPK, “Report of the detailed
findings of the commission of inquiry on human rights in the Democratic
People’s Republic of Korea,” February 7, 2014, A/HRC/25/CRP.1.

[5] Jiyoung
Song, “Why do North Korean defector testimonies so often fall apart?,” The Guardian, October 13, 2015, http://www.theguardian.com/world/2015/oct/13/why-do-north-korean-defector-testimonies-so-often-fall-apart.

[6]Treaty between
the People’s Republic of China and the Democratic People’s Republic of Korea on
Mutual Legal Assistance in Civil and Criminal Matters, signed in November
2003 and entered into force 2006. Committee against Torture, “Consideration of
reports submitted by States parties under article 19 of the Convention, Fifth
periodic report due in 2012, China,” 3 April 2014, CAT/C/CHN/5.

[7] Committee
against Torture, “List of issues in relation to the fifth periodic report of
China*,” 15 June 2015, CAT/C/CHN/Q/5/Add.1.

[8] Available at
http://www.hrichina.org/sites/default/files/english_translation_of_the_chinese_reponse_to_cat_loi_by_hric_tw_mt_v8.pdf.

[9] Available at
http://www.hrichina.org/sites/default/files/english_translation_of_the_chinese_reponse_to_cat_loi_by_hric_tw_mt_v8.pdf.

[10] According
to the UNHCR’s country fact sheet, the population of concern in China as of
August 2015, comes from: Viet Nam 300,895 *, Somalia 182, Nigeria 86, Iraq 52,
Liberia 45, Others 362, Total 301,622. *Indo‐Chinese refugees in Mainland de
facto integrated pending Government regularization. Available at
http://www.unhcr.org/5000187d9.html.

[11]Committee against Torture, “Forty-first
session, Summary Record of the 844th Meeting, Held at the Palais des Nations,
Geneva, on Friday, 7 November 2008, at 10 a.m.,”27 April 2009, CAT/C/SR/844.

[12] Committee against Torture, “Consideration
Of Reports Submitted By States Parties
Under Article 19 Of The Convention: Concluding observations of the Committee
against Torture, China,” 12 December 2008, CAT/C/CHN/CO/4, para 26.

[13] “Regrettably, the Committee members designated as
country rapporteurs, displaying a strong bias against China, paid no heed to
the facts and disregarded the detailed and accurate information and thorough
explanations provided by the Chinese Government.” CAT, “Consideration of
Reports Submitted By States Parties Under Article 19 of the Convention,
Comments by the Government of the People’s Republic of China* to the
concluding observations and recommendations of the Committee against Torture
(CAT/C/CHN/CO/4),” 17 December 2008, CAT/C/CHN/CO/4/Add.1. As an interesting
commentary on the “detailed and accurate” nature of information provided by the
Chinese government, Felice Gaer, in her capacity as the Rapporteur on Follow-up
and Conclusions of the Committee against Torture, wrote in her letter of October
29, 2010, that while the Committee appreciates China’s promises to “work
harder” to improve statistics regarding efforts to combat torture, it remains
dissatisfied with continued failure to provide requested information that would
be needed to fully assess China’s compliance with the CAT’s follow-up
procedures. Available at
http://tbinternet.ohchr.org/Treaties/CAT/Shared%20Documents/CHN/INT_CAT_FUF_CHN_11989_E.pdf.

[15] It is
useful to recall that the Commission of Inquiry on Human Rights in the DPRK
found that China disregards its agreement with UNHCR to allow UNHCR personnel
unimpeded access to asylum seekers including those from the DPRK.

[16] According
to the Permanent Mission of the People's Republic of China to the United
Nations Office at Geneva and Other International Organizations in Switzerland,
the UNHCR started assistance to Indo-Chinese refugees in late 1979, and set up
its task office in China. In 1982, China acceded to the 1951 Convention on the
Status of Refugees and the 1967 Protocol. China has made donations to the UNHCR
Programs every year, and has provided other material or financial support
within its means to refugees assisted by the UNHCR worldwide. China has
maintained a friendly relationship with the UNHCR. The High Commissioner for
Refugees has visited China several times. On December 1, 1995, the UNHCR Task
Office in China was upgraded to its Mission in China. In May 1997, UNHCR
further upgraded its Mission in China to its Regional Office, responsible for
China and Mongolia affairs. Available
at http://www.fmprc.gov.cn/ce/cegv/eng/rqrd/jblc/t85094.htm.

[17] At its 30th
session in May 2003, CAT adopted a procedure for follow-up to concluding
observations on reports of States parties submitted under article 19 of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (see A/58/44, para. 12).
The procedure consists of the Committee identifying, among the recommendations
in the concluding observations, those for which implementation is a priority
and requesting additional information from the States parties, as established
under rule 72, paragraphs 1 and 2, of the Committee’s rules of procedure. That
follow-up procedure has become an important means of assessing the degree to
which compliance with the Committee’s recommendations has had an impact. It has
also become an integral part of the reporting cycle. Committee against Torture,
“Guidelines for follow-up to concluding observations,” 17 September 2015,
CAT/C/55/3.

HRNK on Facebook

Blog Archive

The Committee for Human Rights in North Korea

1001 Connecticut Avenue Northwest, Suite 435

Washington, DC 20036

Tel: (202) 499-7970

Fax: (202) 758-2348

Disclaimer

The views and opinions expressed here are those of the authors' and not those of any other person, organization, or entity; they are the authors' alone. Specifically, they do not represent the views of the Board of Directors of the Committee for Human Rights in North Korea (HRNK) nor necessarily reflect the official policy or position of HRNK.